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					               PROCEDURES 1




PROCEDURES
    Book VII
                              PROCEDURES 2

FOUR processes in code:
  1. Contentious Trial
      ordinary
      oral
  2. Special Processes
      marriage cases
      nullity of orders
      mediation
  3. Penal Trial
  4. Administrative Process
                                                       PROCEDURES 3
OBJECT of a trial (c. 1400)
  1. prosecute or vindicate rights of physical or juridic persons
  2. declare juridic facts
  3. impose or declare the penalty for offenses

However… Controversies arising from administrative acts must be
brought before the superior or an administrative tribunal (cc. 1400§2,
1717-23)

Church has exclusive right to judge:
   1. Spiritual matters
   2. Violations of ecclesiastic laws
   3. Questions of sin
                                                    PROCEDURES 4
INTRODUCTORY PHASE OF TRIAL:
   1. Preliminary investigation (1341-53, 1717-31)
   2. Presentation of libellus / petition (1501)
   3. Constitution of tribunal (1425, 1448,-49)
   4. Determination of competence (1505, 1401-16)
   5. Appt./acceptance/admission of procurator, advocate (1484)
   6. Rejection/acceptance of libellus/petition (1507-12)
   7. Citation of respondent (trial begins; 1517)
   8. Determination of judicial expenses (1464, 1523, 1571, 1649)
   9. Joinder of issues (1513, 1677)
   10. Time frame established to present proof (1526)
                                           PROCEDURES 5
PHASES TO A TRIAL:

  1. INTRODUCTORY

  2. INSTRUCTION (Gathering of Evidence)

  3. DISUCSSION

  4. DECISION

  5. APPEAL
                                  PROCEDURES 6
RIGHT of DEFENSE:
      Citation
      Joinder of the Issue
      Publication of Acts
      Intervention of Defender
      Publication of Sentence
      Appeal/Recourse
                                                         PROCEDURES 7
COMPETENCE:
Absolute competence (invalid): only this court has jurisdiction in this
case (c. 1406§2) from prevention, grade, status of person, or quality of
issue
Relative competence (illicit): there are several courts which can have
jurisdiction in a particular case (c. 1407§2) and usually has territorial
defect.

Absolute Incompetence: results in irremediable nullity.
    Reserved cases: Heads of state; cardinals; bishops (c. 1405)
    Secular courts absolutely incompetent to hear ecclesiastical cases
      (c. 1401)
                                                        PROCEDURES 8
      Ordinary tribunals absolutely incompetent to act at
             Administrative tribunals (c. 1400§2)

With citation, a relatively incompetent tribunal becomes competent.
The exception of relative incompetence is to be raised before joinder (c.
1415).
                                                    PROCEDURES 9
BASES FOR COMPETENCE IN MARRIAGE CASES (c. 1673):

  1. Domicile or Quasi-Domicile of Respondent
  2. Place of Marriage.
  3. Domicile of Petitioner w/consent of the judicial vicar of the
     Respondent who must hear the Respondent. This only possible
     when both parties live in the same Episcopal conference (not
     Puerto Rico, Guam, Wake Islands, Samoa).
  4. Place of Most Proofs w/the consent of the judicial vicar of the
     Respondent who must hear the Respondent (N.B. the parties do
     not need to be in the same Episcopal conference.
                                                 PROCEDURES 10
COMPOSITION AND OPERATION OF A COLLEGIATE TRIBUNAL
FOR ADJUDICATING A MARRIAGE CASE (c. 1609):

  1. The judicial vicar or adjutant judicial vicar presides over a
     collegiate tribunal, unless this isn’t possible. (praeses)
  2. Praeses determines the time the tribunal will convene.
  3. Each judge submits written conclusions w/reasons in fact and law
     (may be sketchy).
  4. These will be appended to the acts.
  5. Invocation of the Divine Name.
  6. Discussion beginning w/in order of precedence, but beginning
     w/the ponens. Led by Praeses.
                                                  PROCEDURES 11
7. Dissenting judge can retract his/her original conclusion; ;or can
    insist that his/her opinion be sent to the appellate court in the
    event of appeal.
8. Vote: majority will be the decision of the court and the decision
    will have the appearance of unanimity.
9. Ponens puts the decision into writing, taking into account the
    reasoning of the other judges during the discussion of the case.
10. The other judges must approve the sentence prior to publication.
11. Finished no more than one month from the day of the decision.
                                                      PROCEDURES 12

EXCEPTION: procedural questions, a claim or complaint that modifies
procedures or contentious suit.

1. Dilatory exception: delay, but do not stop trial.
       Major: questions of serious procedural defect which can lead
              to nullity of the case (before jinder).

       Minor: questions dealing w/a procedural point or issue and has
              no effect on ullity

2. Peremptory: questions that will stop the trial immediately, e.g. the
case is already res iudicata (c. 1462).
                                                    PROCEDURES 13



Who can be a party to a marriage cases? Any person w/capacity.

       Any spouse
       Promoter of Justice if nullity has become public
       (Don’t mention this, but maybe: Interested parties: such as
       children whose inheritance may be in jeopardy.

       Must also be mentally competent; excludes minors.
                                                       PROCEDURES 14

Declaration of the parties: any statement made by a principal in a case (c.
1530).

Confession: A declaration of a party which is against the interest of the
party; or loosely, any statement about oneself which supports the ground
(c. 1535).

Judicial: made to a judge / auditor during the judicial process (c. 1536).
Judicial Confession must be evaluated along w/other elements of the
case: person remembers facts well, understand nature of an oath,
testimonial witnesses.
                                                    PROCEDURES 15
Extra-judicial: made to someone other than a judge / auditor or outside
the judicial process. Can be given full probative value (c. 1537).
                                                       PROCEDURES 16
ELEMENTS TO HELP SUPPORT PROBATIVE VALUE OF A PARTY’S
DECLARATION (c. 1530-34, 1572):

  1.   Testimony of witnesses to parties credibility.
  2.   Testimonial letters in support of witness credibility.
  3.   Impressions by judge recording during interrogation of party.
  4.   Party’s reputation in the community.
  5.   Well established motive; letters in support of witness credibility.
  6.   Impressions by judge recording during interrogation of party.
  7.   Party’s reputation in the community.
  8.   Well established motive.
                                                        PROCEDURES 17
DOCUMENTS ADMISSIBLE IN A TRIAL

Public: those prepared by an official as part of his/her official capacity (c.
1540§§1-2); Fully probative of what they affirm, such as -
    Civil
    Ecclesiastical

Private: those not public (c. 1540§3)
     Against author: may have same weight as extra-judicial
       confession
     Against outsiders: same force as a declaration of the party

Must be originals or authentic copies (signed and notarized, c. 1544).
                                                    PROCEDURES 18
Who can be witnesses (c. 1547)?
      All can be except:
              Unsuited
              Those under 14 (unless judge decrees otherwise, c. 1550§1)
              Those who are mentally debilitated
              Incapable
              The parties themselves
              Priests bound by sacramental seal & others w/same
              knowledge (c. 1550§2)
              No obligation to testify
              Clerics concerning anything connected w/their ministry.
              Those who fear infamy, dangerous vexations or other evil
              toward them or another person (c. 1548).
                                                      PROCEDURES 19

One witness is no witness (c. 1573)

       Unless a qualified witness: give full proof (expert).

              or

       Circumstances suggest otherwise

JPII: expert must have Christian anthropology; expert cannot determine
nullity.
                                                      PROCEDURES 20
Role of EXPERT (c. 1574):

To establish some fact or clarify the true nature of something

Must be used in cases of:
   Impotence
   Defect of consent due to mental illness (1095§3)
   Dignitatis Conubii extends to all c. 1095 cases

       Unless it is obvious that this would be useless (alcoholism)
                                                      PROCEDURES 21

Publication of the ACTS: Allow the parties and their advocates to see the
acts (or proofs) which are not yet known to them (c. 1598).

Publication of the SENTENCE: Provide a copy of the sentence to the
parties or their procurators (c. 1614-15); sentence sanates undeclared
nullity of acts (c. 1619).


PRESUMPTION: probable conjecture about an uncertain matter;
legal/human presumptions (c. 1584).
e.g. marriage is valid, marital act presumed, imputability presumed.
                                                       PROCEDURES 22

MORAL CERTITUDE: The EXCLUSION OF ANY WELL-FOUNDED
DOUBT. (lies between absolute certitude and probability). Judge must
reach this before rendering any kind of sentence (c. 1608).

He comes to moral certitude based on the acts and the proofs (c. 1608§2).

If judge cannot reach moral certitude (c. 1608§4):
        1. Pronounce that the right of the Petitioner has not been
            established; absolve the respondent.
        2. Unless it is a question of a case enjoying he favor of the law.
            Nullity not proven.
        3. Penal cases: constant; non-constant, declaration of innocence
                                                    PROCEDURES 23

Judge’s DEFINITIVE SENTENCE must contain (c. 1611):
   1. Settle the controversy: a response to each & every doubt.
   2. Determine obligation of the parties
   3. Set out the reasons motivating the decision
   4. Apportion court expenses.
                                                   PROCEDURES 24
External Solemnities (c. 1612):
   1. Introduction: invoke divine name; judges; names and domiciles
       of parties; name of procurator/Defender of the Bond/Promoter of
       Justice
   2. The facts: w/conclusions of the parties
   3. Formulation of the doubt.
   4. Expositive Section:
               in iure (what is the relevant law to the grounds set).
               in facto: applies the law to the proofs.
   5. Dispositive Section: constat or non-sonstat
   6. Conclusion: date, place, signatures.
                                                     PROCEDURES 25

REMEDIES against a sentence w/which one disagrees.

Complaint of Nullity: the process was so bad that the sentence should be
thrown out (c. 1619)
     Irremediable nullity: it isn’t fixed w/time (c. 1620)
     Remediable: the nullity is fixed w/time (3 months c. 1622)

Distinguish between curable & incurable nullity of a sentence.
                                              PROCEDURES 26
INCURABLE (IRREMEDIABLE): NOT HEALED W/TIME (c. 1620) such
as -
     Rendered by an absolutely incompetent judge
     Rendered by one lacking power to judge
     Rendered under force/fear
     One party lacked standing
     Trial w/o libellus or not against some respondent
     One person acted on behalf of another w/o mandate
     Right of Defense was denied, such as -
          Respondent not cited
          Grounds not made known to the parties
          Respondent not given opportunity to propose witnesses
          Acts/Sentence not published
                                                       PROCEDURES 27
           Not given an advocate when asked
           Advocate did not represent the party’s best interests.
       Sentence did not even partially settle the controversy

Effects: complaint of nullity can be raised as an exception in perpetuity,
and as an action for 10 years from the date of publication.
                                                      PROCEDURES 28
CURABLE (REMEDIABLE): HEALED W/TIME (c. 1622) such as -
     Rendered by illegitimate number of judges
     It does not give the reasons or motives
     It lacks the required signatures
     It lacks reference to date and place of publication
     It was rendered against a party who was legitimately absent.

Effects: complaint of nullity can be raised within 3 months of notification
of publication of sentence. After 3 months w/o a complaint, the sentence
is healed.
                                                      PROCEDURES 29
Publication of Sentence (c. 1614):

Copy of the sentence given to the parties or their procurators; can be
mailed (c. 1615).

Must also include ways to impugn the sentence: appeal

Appeal: Challenge to the merits of a case. By a party, Defender of the
Bond, or Promoter of Justice (c. 1628).

What does not admit of appeal: res iudicata; decree which must be issued
expeditissime; sentences of the pope or Apostolic Signatura.
                                                       PROCEDURES 30

Appeal must be filed within 15 days of notification of publication (c. 1615)
and has suspensive effect (c. 1638).

RES IUDICATA: final judgment with second concordat sentence (after
appeal), or no appeal, or abated/renounced at appellate court but nenver
on status of persons (c. 1641-42).

RESTITUTIO IN INTEGRUM: An EXTRAORDINARAY REOPENING of
the case that has become RES IUDICATA (usually of new evidence, false
proofs, new facts, or malice): the SENTENCE’S INJUSTICE IS CLEARLY
MANIFEST (c. 1645).
                                                     PROCEDURES 31

DOCUMENTARY PROCESS (c. 1686):
When the cause of nullity is:
      1. A diriment impediment
      2. A defect of form
      3. A defect of a valid mandate to act as a proxy

Summary judicial process (single judge: must be a cleric)

Tribunal must be competent on basis of c. 1673

Parties must be cited; Defender of the Bond must intervene (c. 1687)
                                                        PROCEDURES 32
Second instance review is not mandatory unless there is an appeal (c.
1688).
The Right to Defense: the right of each party to (1) be heard and (2) to
know and be able to contradict those things put forth by the opposing
party.

It bears on both the instrumental and intrinsic ends of procedural law.
        Instrumental: to guide and structure the search for truth.
        Intrinsic: to honor human Christian dignity of persons by
                providing them w/an opportunity for meaningful
                participation in decisions that profoundly touch their lives.
The citation: To know what action is being taken against him/her
                                                      PROCEDURES 33
Opportunity to present EVIDENCE:
Publication of the acts. What proofs will the judge base his/her decision.
If right to defense is denied it leads to incurable nullity(c. 1620).

Incidental Questions: a question which often must be resolved before the
principal question (c. 1587).

   1. Should the question be admitted.
   2. If so, how should it be dealt with (Decree or Sentence)

   By decree: can be given to an auditor (c. 1599§3)
   By sentence: oral contentious process. (streamlined judicial process)

				
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